Justice Committee on March 28th, 2007

[Tony Cannavino]

We often hear about studies and comparison studies. What I like about today is that we are privileged to have a judge here who's been on the bench for 26 years. We're talking about experience in the number of cases he's seen. So the comparisons with certain studies—And I'm a little bit astonished to hear the last question about judges sentenced for corruption. There are a few, so I don't know what kind of studies—There must be a flaw in the studies you've read.

The other thing is the principle of anything but jail for the first sentence. We don't agree with that. It depends on what the crime was. What was the intention? What was the mens rea on that? You have to look into that or else we're going to start a debate on another committee that we said—we're talking about revolving doors.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

What's wrong with judges, Tony?

[The Chair, Conservative, Art Hanger]

Mr. Cannavino, in reference to Mr. Murphy's question and this principle that has come forward, as Mr. Ratushny pointed out, of anything but jail, are the judges then following the principle that's outlined? Is that basically what's happening here? Anything but jail: who came up with that?

[Tony Cannavino]

In the training we have had--and we always have updates--I have never seen that. I don't know where it's written that it should be the principle. I think the best person to answer that would be Justice Craig. The question is, I don't know if we're talking about process or about committees and what is wrong with enhancing a committee.

[The Chair, Conservative, Art Hanger]

Okay.

Mr. Trudell. What's wrong with our judges?

[William Trudell]

Nothing. With great respect, first of all, the Criminal Code provides under section 718—and it's the law—that jail should be the last resort. That's the law, and I don't want to get into a debate with Justice Craig about whether judges are too soft or whatever, because at the end of the day, Justice Craig has said that we need tougher judges.

In answer to your question, sir, there is nothing the matter with the system if we embrace the system. If, for instance, the Prime Minister had said we have a very good criminal justice and federal justice system in the country, but he would like to maybe introduce police officers on the committees to broaden the perspective, we wouldn't be here.

So there's nothing the matter with it. The matter is the politics that are built into it. There was some criticism suggesting that Liberal-appointed judges or whatever-appointed judges were thwarting government agendas and we're not getting it and not applying the law and not being tough on law and order. That's anecdotal stuff. We all know that there are judges who are tough and judges who are perhaps lenient, but we're not going to get into anecdotal stories. There's nothing the matter with the system. There's nothing the matter with it.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell.

Just for the benefit of the committee, looking at section 718.2 of the Criminal Code, other sentencing principles, it's noted in point (e) that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. And that's outside—

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Read all of section 118. That's ridiculous. Those are the sentencing principles. There are a bunch of sentencing principles. You can't just read one.

[The Chair, Conservative, Art Hanger]

No, but I'm talking about the reference—

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Okay, we all have a code.

[The Chair, Conservative, Art Hanger]

—that Judge Craig and Mr. Ratushny had mentioned. I'm just making reference to that for the benefit of the committee.

Now, I think your time is up, Mr. Murphy.

We'll go to Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I'd like to draw your attention to the fact that that was 11 minutes, although Mr. Murphy's comments were relevant. I'm certain you will be just as generous with all our colleagues. That being said, I will not accept being interrupted after six minutes.

I am somewhat surprised by the direction this debate is taking, because we are not here to establish sentencing principles nor to decide whether or not police officers or judges are corrupt.

I tend to believe that most people do their jobs honestly. Of course, there have been cases of corrupt police officers, teachers, MPs and judges, but that has nothing to do with our debate today. This is a government which decided, with no prior consultation, to rework the rules of the game in the judicial appointment process, and we have reason to believe that they did so for ideological reasons. As parliamentarians, we have to decide in this matter, and this has nothing to do with whether or not police officers are competent.

Why choose police officers over notary publics, nurses or any other professional? Police officers, as diligently as they may do their work, do not have any greater expertise in the field of criminal law. Besides, most lower courts do not deal primarily with criminal matters. So why would they claim they have more expertise in the matter than anyone else in our society? It is a problem because in 8 out of 10 provinces, police officers trigger the laying of charges. I don't understand how anyone could feel there is no potential conflict of interest here.

Are police officers able to exercise appropriate judgment as to the qualifications required to be a judge? Of course. But once you step onto that slippery slope, you accept that the system for appointing judges loses its integrity.

This leads me, in a spirit of friendship and out of great respect, to ask two questions, first of the professor—I will not try to pronounce his name—and one of my colleague Mr. Cannavino.

Witnesses have asked us to set out in legislation the terms and conditions relating to the composition of judicial advisory committees to avoid governments making any changes to them given the random partisan fluctuations we've seen. Would you be in favour of legislation being submitted to Parliament aiming to preclude any undue partisanship?

I realize my question may be biased, but I am familiar with your great intellectual integrity. My question goes to you, Mr. Cannavino, as well as to your seatmate. Would you agree that police officers have a specific mission to carry out, that they are in a position of conflict of interest from the start because they are the ones that bring the charges in 8 out of 10 provinces?

I suggest that the professor answer my two questions, and then Mr. Cannavino.

[Prof. Edward Ratushny]

I didn't understand your first question. Was it whether there should be term—?

[Réal Ménard, Bloc, Hochelaga, QC]

Do you believe Parliament should pass legislation to determine the terms and conditions relating to judicial appointments, as your colleague Professor Sébastien Gramont told the committee two weeks ago?

[Prof. Edward Ratushny]

A limited term of appointment.

[Réal Ménard, Bloc, Hochelaga, QC]

No. I'm referring to the way in which we select judges.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Should the process of selection and appointment of judges be framed in an actual piece of legislation? Some of the provinces already have that for provincially appointed judges.

[Prof. Edward Ratushny]

I see, the qualifications for judges.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

The qualifications, the process, meaning that a committee, the committees proposed—

[Prof. Edward Ratushny]

I see. No, I don't think that legislation would be appropriate.

Ultimately this is a decision of the government. All this advisory structure is essentially the government asking for assistance. But by the Constitution, they have the right to appoint judges--the government does. That's the government's prerogative. I don't think that prerogative should be bound by legislation.

[Réal Ménard, Bloc, Hochelaga, QC]

Very well.

I'll ask my second question, and then turn the floor over to Mr. Cannavino.

Am I mistaken in believing that police officers, who do admirable work with integrity, are involved in the process? In a number of provinces, not in Quebec but elsewhere in Canada, they initiate the indictment process.

[Prof. Edward Ratushny]

They start the criminal cases, you're saying?

[Réal Ménard, Bloc, Hochelaga, QC]

Yes.

[Prof. Edward Ratushny]

Well, it goes beyond that. They're involved in the criminal cases. Their conduct is reviewed in the course of a criminal trial, so they're very much partisans in the process. So unlike the lawyer, whose conduct is not judged in the ultimate determination of the case, the conduct of police officers may well be and frequently is.

So that in that respect, I believe they're partisan.

[Réal Ménard, Bloc, Hochelaga, QC]

Very well.

Mr. Cannavino, I'm sure you're dying to express your views on that.